Filed 2/3/21 P. v. Hernandez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN HERNANDEZ,

Defendant and Appellant.

 B307123

 (Los Angeles County

 Super. Ct. No. VA043401)

APPEAL from an order of the Superior Court of Los 

Angeles County, Lee W. Tsao, Judge. Affirmed.

Benjamin Hernandez, in pro. per.; and Richard B. Lennon, 

under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

_______________________________
2

Benjamin Hernandez appeals from an order denying his 

motion to modify his sentence, imposed in 1998. We affirm, as 

Hernandez’s supplemental appellate brief does not present any 

valid ground for modifying his sentence.

BACKGROUND

In 1998, a jury found Hernandez guilty of carjacking (Pen. 

Code, § 215, subd. (a)),1 second degree robbery (§ 211), and three 

counts of assault with a firearm (§ 245, subd. (a)(2)). The jury 

also found true the special allegations that Hernandez had 

sustained a prior robbery, a serious felony/strike conviction 

(§§ 667, subds. (a)-(i) & 1170.12, subds. (a)-(d)) on June 24, 1993; 

had served two prior prison terms within the meaning of section 

667.5, subdivision (b) for the June 24, 1993 robbery conviction 

and an October 11, 1995 conviction for assault with a firearm; 

and had personally used a handgun in the commission of the 

offenses (§ 12202.5, subd. (a)).

The trial court sentenced Hernandez to 36 years in prison: 

for the carjacking, the upper term of nine years, doubled to 18 

years for the prior strike; for the robbery, one year (one-third the 

middle term), plus one year for the firearm enhancement; for 

each of the three assaults with a firearm, one year (one-third the 

middle term), doubled to two years, plus 16 months for the 

firearm enhancement; and, as to one of the three assaults with a 

firearm, a consecutive term of five years for the prior serious 

felony enhancement, plus one year for the prior prison term 

enhancement. Hernandez appealed from the judgment of his 

convictions, and this court affirmed the judgment.

1 Further statutory references are to the Penal Code.
3

On January 31, 2020, Hernandez, as a self-represented 

litigant, filed a motion to modify his sentence pursuant to newlyenacted section 1016.8. (Stats. 2019, ch. 586, § 1, eff. Jan. 1, 

2020.) The statute provides, in pertinent part, that a plea 

bargain “that requires a defendant to generally waive unknown 

future benefits of legislative enactments, initiatives, appellate 

decisions, or other changes in the law that may occur after the 

date of the plea is not knowing and intelligent.” (§ 1016.8, subd. 

(a)(4).) Hernandez argued in his motion that section 1016.8 

requires vacation of his second strike sentence because his June 

24, 1993 prior strike conviction for robbery followed a plea 

bargain that pre-dated enactment of the “Three Strikes” law, and 

he “was never told in 1993 that the contract he made [the plea 

bargain] would be or could be used to double any further 

conviction and or that the [c]ontract would be considered a 

[s]trike.”2 On February 24, 2020, the trial court (Judge Michael 

Cowell) summarily denied the motion. Hernandez did not file a 

notice of appeal from this order.

Several months later, on June 15, 2020, Hernandez, as a 

self-represented litigant, filed another motion to modify his 

sentence in light of Senate Bill No. 136,3 which amended section 

667.5, subdivision (b), effective January 1, 2020, to apply the oneyear prior prison term enhancement only to a prior prison term 

2 California’s Three Strikes law became effective in 1994. 

(People v. Anderson (1995) 35 Cal.App.4th 587, 590; People v. 

Reed (1995) 33 Cal.App.4th 1608, 1610, fn. 2.)

3 Senate Bill No. 136 (2019-2020 Reg. Sess.) Statutes 2019, 

chapter 590, section 1.
4

for a sexually violent offense, and Senate Bill No. 1393,4 which 

amended sections 667 and 1385, effective January 1, 2019, to give 

trial courts discretion to strike prior serious felony 

enhancements. He argued these statutory amendments should 

apply retroactively in this case, although the judgment in this 

case became final around two decades before the effective dates of 

the amendments. He also referenced in this second motion the 

application of section 1016.8 to his case, although in a more 

cursory fashion than he did in his earlier motion to modify his 

sentence, as summarized above. On June 17, 2020, the trial 

court (Judge Lee Tsao) summarily denied this motion. 

On August 13, 2020, Hernandez, as a self-represented 

litigant, filed a timely notice of appeal from the June 17, 2020 

order denying his June 15, 2020 motion to modify his sentence. 

This court appointed counsel for him. After examination of the 

record, counsel filed an opening brief raising no issues and asking 

this court to follow the procedures set forth in People v. Serrano

(2012) 211 Cal.App.4th 496 (Serrano). On November 10, 2020, 

we sent a letter to Hernandez and his appointed counsel, 

advising Hernandez that within 30 days he could personally 

submit any contentions or issues he wanted us to consider, and 

directing counsel to send the record and opening brief to 

Hernandez immediately. Hernandez filed a supplemental brief,

raising the contentions set forth below.

DISCUSSION

Because Hernandez’s appeal is not his first appeal of right 

from his convictions, he is not entitled to our independent review 

4 Senate Bill No. 1393 (2017–2018 Reg. Sess.) Statutes 

2018, chapter 1013, sections 1-2.
5

of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 or 

its federal constitutional counterpart, Anders v. California (1967) 

386 U.S. 738. (See People v. Kelly (2006) 40 Cal.4th 106, 119; 

Serrano, supra, 211 Cal.App.4th at p. 503; Pennsylvania v. 

Finley (1987) 481 U.S. 551, 559.) He is entitled, however, to file a 

supplemental brief—which he has done here—and to our review 

of his contentions set forth therein. (See Serrano, at p. 503; cf., 

Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 6; Ben 

C., at pp. 554–555 (dis. opn. of George, C. J.).)

In his supplemental brief on appeal, Hernandez argues the 

trial court failed to consider mitigating factors—his substance 

and alcohol abuse—at his 1998 sentencing, and the trial court 

should consider these mitigating factors, his good behavior in 

prison, and any new mitigating factors arising since his 

incarceration at a resentencing hearing. Hernandez has not 

presented a valid ground, however, for this court to send the 

matter back to the trial court for a resentencing hearing. In the 

June 15, 2020 motion to modify his sentence, that is the subject 

of this appeal, Hernandez referenced Senate Bill No. 136, Senate 

Bill No. 1393, and section 1016.8, none of which is applicable to 

his case, as explained below.

The amendment to section 667.5, subdivision (b) in Senate 

Bill No. 136 regarding the one-year prior prison term 

enhancement and the amendment to sections 667 and 1385 in 

Senate Bill No. 1393 regarding the five-year prior serious felony 

enhancement do not apply to Hernandez’s case because the 

judgment of his convictions was final around two decades before 

the effective date of these amendments. (See People v. Lopez

(2019) 42 Cal.App.5th 337, 341-342 [applying Senate Bill No. 136 

retroactively when appeal not final by January 1, 2020]; People v. 
6

Garcia (2018) 28 Cal.App.5th 961, 971-972 [applying Senate Bill 

No. 1393 retroactively when appeal not final by January 1, 

2019].)

Similarly, section 1016.8 does not authorize a collateral 

attack on a final judgment. The “law ‘applies retroactively to all 

cases not yet final on appeal.’ ” (People v. Barton (2020) 52 

Cal.App.5th 1145, 1153.) The 1998 judgment Hernandez 

challenges in this appeal has long been final. As to the merits of 

Hernandez’s contention, section 1016.8 states that a plea bargain 

that waives “unknown future benefits” in the law is not knowing 

and intelligent. (§ 1016.8, subd. (a)(4).) Enactment of the Three 

Strikes law in 1994 did not provide a “benefit” (e.g., a reduction 

in punishment) to criminal defendants. Thus, because 

Hernandez could receive no benefit from the Three Strikes law, 

section 1016.8 is inapplicable to his contention that his second

strike sentence is invalid because he was never told his prior plea 

bargain (resulting in the strike conviction) could be used to 

double a future sentence. His contention also fails under case 

law, which provides that a conviction after a guilty plea that predates enactment of the Three Strikes law may be used as a strike 

under the Three Strikes law. (See People v. Gipson (2004) 117 

Cal.App.4th 1065, 1068-1070; People v. Sipe (1995) 36 

Cal.App.4th 468, 475, 478-479; see also Doe v. Harris (2013) 57 

Cal.4th 64, 66 [a plea agreement does not insulate the parties 

“from changes in the law that the Legislature has intended to 

apply to them”].) 

We are satisfied that Hernandez’s counsel has fully 

complied with his responsibilities. (See Serrano, supra, 211 

Cal.App.4th at p. 503.) Based on our review of the record, the 

applicable law, and Hernandez’s supplemental brief, we conclude 
7

there is no arguable issue and, for the reasons set forth above, 

affirm the order denying Hernandez’s motion to modify his

sentence.

DISPOSITION

The June 17, 2020 order denying Hernandez’s June 15, 

2020 motion to modify his sentence is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.